Contents
Preface IX
Emmanuel Gaillard
Acknowledgement XI
List of Abbreviations XII
General Introduction 1
Preliminary Part Sources of Arbitration in the Arab Countries
1
Arbitration in Its Legislative Context 13
Section I
Systems Based upon Islamic Sharia 14
Subsection I
The Main Features of Sharia 14
1
Sources of the Sharia 16
2
The Islamic Rites and Schools 17
3
The Expansion of Sharia 19
4
Sharia Confronted with Modern Needs 21
Subsection II
Scope of Sharia 23
1
Islamic Socio-legal Systems 23
2
Sharia as a Source of Law 27
Section II
Opening of the Arab Countries to Western Laws 34
Subsection I
Historical Factors 34
Subsection II
Codifications of Independence 36
1
Codes Directly Deriving from French Law 36
2
The “Franco-Egyptian” Source 37
2
Arab Laws and Practice of Arbitration 39
Section I
National Laws 39
Subsection I
Islamic Arbitration 39
1
Legality of Arbitration in Islamic law 42
2
Features of Arbitration in Islamic law 44
3
Gradual Evolution Away from Islamic Type of Arbitration 49
Subsection II
Secular Laws Inspired by the West 59
1
Laws Derived from “modern” Western Models 60
2
Laws Derived from Earlier or ‘traditional’ Models 106
3
Special Cases of Institutionalised Arbitration in Kuwait and Bahrain 113
Subsection III
Enshrining of Arbitration in the Arab Laws Encouraging Investment 119
1
The Definition of Investment and the Scope of Application of Laws 122
2
Requirements for the Implementation of Arbitration 125
Section II
Multilateral Treaty Law 145
Subsection I
Global Conventions 145
1
The New York Convention of 10 June 1958 146
2
The Washington Convention of 1965 158
Subsection II
Regional Treaty Law 161
1
Inter-Arab Conventions on Investment 161
2
The Amman Arab Convention of 1987 Establishing the Arab Centre for Commercial Arbitration 180
3
Regional Conventions on the Enforcement of Awards 182
Section III
Arab Arbitration Practice 190
Subsection I
The “Oil awards” 193
Subsection II
The Rise of Institutional Arbitration in Arab Countries 200
1
Various Initiatives 201
2
Promising Centres 216
3
Centres Which Have Proved Their Worth Regionally 219
Subsection III
The West, still the Leading Place for International Commercial Arbitration Involving an Arab Party 223
1
Parties of Arab Origin Involved in ICC Arbitration between 2005 and 2014 224
2
Capacity of the Parties 227
3
Nationality of the Arbitrators 229
4
The Seat of Arbitration 232
First Part
Arbitration in the Arab Countries and the Requirement of Freedom
1
Freedom of the Parties 239
Section I
Free Access to Arbitration 239
Subsection I
The Effectiveness of the Arbitration Clause 243
Subsection II
Compulsory Institutionalised Arbitration 387
Subsection III
The Field of Arbitration 391
Section II
The Freedom to Organize International Arbitration 538
Subsection I
The Choice of Arbitrators 538
Subsection II
The Choice of the Procedure 571
Subsection III
The Selection of the Rules Applicable to the Merits 619
2
Autonomy of the International Arbitrator 660
Section I
The Arbitrator’s Competence over His Jurisdiction 660
Subsection I
The Positive Effect of the Rule 661
Subsection II
Negative Effect of the Rule 675
Section II
The Arbitrator’s Autonomy in the International Arbitration Procedure 697
Subsection I
The Arbitrator’s Autonomy with Regard to the Law of the Seat 699
Subsection II
Extent of Powers of the International Arbitrator 709
Section III
Autonomy of the Arbitrator in Settling the Merits of the Dispute 771
Subsection I
The Choice by the Arbitrator of the Rules of Law Applicable to the Merits 773
Subsection II
The Arbitrator Faced with the Specificity of Arab Public Policy 795
Second Part
Arbitration in the Arab Countries Faced with the Requirement of Safety
1
Safety within Arbitration 845
Section I
Independence and Impartiality of International Arbitrators 853
Subsection I
The Obligations of Independence and Impartiality 856
Subsection II
The Obligation of Disclosure 896
Section II
The Fight against Delaying Tactics 902
Subsection I
Tactics Used by the Parties 904
Subsection II
The Arbitrators’ Delaying Tactics 971
2
Safety of International Arbitration 997
Section I
The Efficiency of Awards Rendered in the Arab Countries 999
Subsection I
Modern Law Systems 1000
Subsection II
Traditional Laws 1136
Section II
The Efficiency of Awards Rendered Abroad 1173
Subsection I
Awards Not Governed by the New York Convention 1174
Subsection II
Awards Governed by the New York Convention 1260
Conclusion 1302
Index 1303